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R V Vale of Glamorgan DC Ex parte David Adams [2000] EWHC Admin 323 (12th April, 2000)

CASE NO: CO/2775/99
IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION
CROWM OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Friday 12 April 2000

BEFORE:
THE HON MR JUSTICE RICHARDS
Regina
V
Vale of Glamorgan DC
Ex parte David Adams
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
____________________
No Council for Respondents
Mr Elvin (instructed be 4 Breams Buildings) for the Applicant
____________________
Judgment
As Approved by the Court
Crown Copyright ©

MR JUSTICE RICHARDS:
1. The applicant, Mr David Adams, is the tenant farmer of The Darren Farm at Cowbridge in the Vale of Glamorgan. The farm has been farmed by the family since 1941. The applicant now runs it in partnership with his sister and brother under the name of E.T. Adams & Son. His mother used to be a member of the partnership and used to live in the house at the farm, but she died in 1999. His sister thereupon inherited the mother's share and moved into the house. The farm itself is a dairy farm and is also used for the purposes of a livestock haulage business.
2. The freehold owners of the land are the Trustees of the Penllyn Estate. In the documents before the court there is an allegation that the Trustees have conducted a vendetta against the Adams family over several years. That, however, is not something about which I can or should form a judgment. It is not relevant to the issues before me and the Trustees have chosen not to take any part in the proceedings.
3. Whatever the background, the fact is that the Trustees applied for planning permission to permit the conversion and change of use of three barns on the farm into residential use. The application sought originally to convert the barns into two dwellings, but it was subsequently amended to seek permission for conversion into a single dwelling. Planning permission was granted by the respondent council on 28 May 1999. In reliance on the planning permission the Trustees have served on the applicant a notice to quit that part of the farm comprising the three barns pursuant to Case B of Schedule 3 to the Agricultural Holdings Act 1986.
4. The three barns are essential to the continued use of the farm for the existing dairy business. They are located at one end of the farmyard and are used for the purposes of a milking parlour, dairy, calf shed and granary. The material placed before the council in opposition to the application for planning permission included evidence that conversion of the barns and their consequent loss of use for the farm would have a catastrophic effect on the Adams family, would result in loss of employment for local residents and would be damaging to the agricultural community in the area.
5. The applicant now challenges by way of judicial review the grant of planning permission to the Trustees. His main case is that the advice given to members of the council by their officers was based on a misdirection and left members with the erroneous impression that they had no option but to grant permission, rather than drawing the material considerations properly to their attention and leaving them to form their own judgment as to the weight to be given to those considerations. There is no dispute that the applicant enjoys a sufficient interest to bring the application.
Material considerations
6. The material considerations to which the council was required to have regard in reaching its decision included relevant aspects of national and local policy. It is common ground that, in order to have regard to policy, the decision-maker must understand the policy properly (see South Somerset DC v. Secretary of State for the Environment [1993] 2 EGLR 203 at 203k-204d). The interpretation of a policy, however, is a matter for the decision-maker, subject to limits of Wednesbury reasonableness (see Virgin Cinema Properties v. Secretary of State for the Environment [1998] 2 PLR 24 at 27-29).
7. As to national policy, two versions of Planning Guidance (Wales): Planning Policy ("PGWPP") are relevant to the case. The May 1996 version was in force when the council first began to consider the application for planning permission. By the date of the decision it had been replaced by the April 1999 version.
8. Paragraphs 189 and 190 of PGWPP (1996) state:
"Agricultural development
189. An efficient and flexible agricultural industry remains essential. Local planning authorities should in general adopt a positive approach towards agricultural development proposals which are designed, or are necessary, to achieve compliance with new environmental, hygiene or welfare legislation.
Re-use and adaptation of rural buildings
190. When deciding a planning application for the re-use and/or adaptation of rural buildings local planning authorities should take into account the potential for redevelopment for a compatible use or for job-related development. Evidence that a building is not redundant for its present use is not by itself sufficient grounds for refusing permission for a proposed new use and proposals for re-use of rural buildings should not be rejected unless there are specific and convincing planning reasons e.g. on environmental or traffic grounds that cannot be overcome by conditions. However, local planning authorities should examine applications for changes to residential use with particular care. New housing in the open countryside is subject to strict control, and it may be appropriate to apply similar principles to proposals for the conversion of existing rural buildings to dwellings. Applications for conversions of buildings that could only be brought back into use by complete or substantial reconstruction should be considered as if the application were for a new building."
9. PGWPP (1999) contains somewhat different provisions concerning the re-use and adaptation of rural buildings. Paragraph 10.5 reads:
"Re-use and Adaptation of Rural Buildings
10.5.1 The re-use and adaptation of existing rural buildings has an important role in meeting the needs of rural areas for commercial and industrial development, as well as for tourism, sport and recreation. Local planning authorities should adopt a positive approach to the conversion of rural buildings for business re-use provided that: ....
10.5.2 Residential conversion of buildings which have ceased to be used for industrial or commercial purposes, including agriculture, can have a minimal economic impact, and may be detrimental to the fabric and character of historic buildings, while business conversions generally have a more positive economic impact on local employment. Local planning authorities should consider the needs of their areas for business, and residential, conversions. Especially in areas where the creation of local employment is a priority, they may include policies in their development plan which do not allow residential re-use unless either:
(a) the applicant has made every reasonable attempt to secure suitable business re-use, and the application is supported by a statement of the efforts which have been made; or
(b) residential conversion is a subordinate part of a scheme for business re-use. [These considerations are in addition to the criteria in paragraph 10.5.1.] ....
10. Both versions of PGWPP preserve in force Annex D (Re-use and adaptation of rural buildings) of PPG 7. Paragraph D2 of that annex provides:
"When assessing planning applications for the re-use or adaptation of a rural building, the primary consideration should be whether the nature and extent of the new use proposed for the building are acceptable in planning terms. It should not normally be necessary to consider whether the building is no longer needed for its present agricultural or other purposes (although in the case of a tenanted agricultural building, the value in planning terms of the existing use should be taken into consideration). Evidence that a building is not redundant for its present use is not by itself sufficient grounds for refusing permission for a proposed new use ...."
11. The material provisions of local policy are to be found in Policy ENV 7 of the deposit draft of the Unitary Development Plan. Although not yet adopted, weight may properly be attached to the draft policies. Policy ENV 7 relates to small scale rural conversions. The applicant relies not on the terms of the policy itself, but on two paragraphs of the explanatory text, which read:
"3.4.24 It is preferable that rural buildings be retained for their original use or are put to a new agricultural use ....
3.4.25 Applications for changes to residential use will be examined with particular care ...."
12. As paragraph 3.4.27 observes, the policy is more fully explained in supplementary planning guidance published by the council under the title "The Conversion of Rural Buildings: A Policy and Design Guide." The text of Annex D to PPG 7 is included as an annex to the Guide. The text of the Guide lists the following among the points that will be considered as background to any proposal (page 7, paragraph (l)):
"Many rural buildings are related to, or adjoin land used for agricultural activities or other uses which may be incompatible with a proposed conversion. Favourable consideration will not be given to proposals which may prejudice existing agricultural activities ...."
13. In addition to those policy strands, it is common ground that the personal circumstances of an occupier of premises can be taken into account exceptionally as material considerations. As Lord Scarman put it in Westminster City Council v. Great Portland Street Estates Plc [1985] AC 661 at ...:
"Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from the control of our environment the human factor. The human factor is always present, of course, indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should, be given direct effect as an exceptional or special circumstance. But such circumstances, when they arise, fall to be considered not as a general rule but as exceptions to a general rule to be met in special cases. If a planning authority is to give effect to them, a specific case has to be made and the planning authority must give reasons for accepting it. It follows that, though the existence of such cases may be mentioned in a plan, this will only be necessary where it is prudent to emphasise that, notwithstanding the general policy, exceptions cannot be wholly excluded from consideration in the administration of planning control."
The council's consideration of the planning application
14. The first report of the chief planning officer to the relevant committee of the council, the Development Control Sub-Committee, was dated 2 September 1998. On that occasion the report recommended refusal of the application, but solely on the grounds of highway safety. The report recorded the result of consultations and representations, including concerns about the loss of existing agricultural activity for housing and, more specifically, that the proposal would result in the loss of the working farm. It also referred to the strong objections on behalf of the tenant. As to that, it went on to state:
"It will be seen from the letters of objection received on behalf of the tenant that they raise a number of objections to the scheme. The tenant has indicated that the proposal will result in the loss of his only working buildings on this farm and no replacement buildings are proposed. In this context, it is noted that under Central Government guidance the requirement for buildings to be redundant was removed a number of years ago. Paragraph 190 of Planning Guidance Wales (1996) advises that ... 'evidence that a building is not redundant for its present use is not by itself sufficient grounds for refusing permission for a proposed new use ...'. Committee's attention is drawn to Appendix B relating to an appeal decision elsewhere within the Vale where similar objections arose. Whilst this matter has been given careful consideration, and the circumstances of the tenant are duly noted, it is considered that a reason for refusal on this basis could not be sustained."
15. The affidavit of the chief planning officer indicates that, in addition to the appeal decision included as Appendix B (namely a planning inspector's decision dated 12 April 1996), regard was had to the decision of the High Court in Fowler v. Secretary of State for the Environment and North Wiltshire DC [1993] JPL 365.
16. By 21 October 1998, the date of the second report, the highway problem had been resolved. In relation to the tenant, the report repeated the paragraph already quoted from the first report. It went on:
"Accordingly, the proposal is recommended for approval."
17. The sub-committee resolved to defer the matter to enable a site visit to be made, with particular regard to the highway issues. This led to the preparation of a third report, dated 18 November 1998, for the purposes of the next meeting of the sub-committee. In addition to matters already mentioned, the report referred to comments received from the local ward member, Councillor Baty, who did not feel that the full impact of the application on the future operation of the farm had been fully explored. The paragraph already quoted from the first report was repeated with a slight variation. The quotation from PGWPP (1996) was slightly expanded, so as to include the statement that "proposals for the re-use of rural buildings should not be rejected unless there are specific and convincing planning reasons, e.g. on environmental or traffic grounds, that cannot be overcome by conditions". The reference to an appeal decision elsewhere within the Vale was removed. The last two sentences of the relevant paragraph read:
"Whilst this matter has been given careful consideration, and the circumstances of the tenant are duly noted, it is considered that a reason for refusal on this basis could not be sustained, given the guidance in PG(W)PP. The Head of Legal and Administration has confirmed this view."
18. Accordingly the proposal was again recommended for approval. Councillor Baty attended the meeting, however, in order to make representations on behalf of the applicant. The chief planning officer states in his affidavit that the senior lawyer attended the meeting and gave legal advice as to the position in law of the tenant farmer and the weight that could be accorded to his interest. It was specifically stated that the fact that the barns were in use was a material consideration, which consideration could be accorded more weight than had they been redundant. Members declined to accept the legal advice and the views of the planning officer as contained in the report and requested that the matter be considered further by officers. They specifically requested that the chief planning officer write to the Local Government Association and request their view with regard to the conversion of buildings which were not redundant.
19. The chief planning officer wrote to the Association on 11 December 1998. Having outlined the factual background, he stated in his letter:
"I have taken the view that the application should be considered on its planning merits, and should be assessed against current Council policies and Government policy generally. I therefore consider that the agricultural building dispute is primarily a civil matter between the two parties. I have also taken the view that the loss of the buildings to the holding is not a material consideration. This is based on advice given in paragraph 190 of Planning Guidance (Wales): Planning Policy, which states: ... [already quoted].
However, advice given in Planning Policy Guidance Note No.7 (PPG7), 'the Countryside and the Rural Economy', states at Anned D, paragraph D2 as follows: ... [already quoted].
This advice, particularly the part included in brackets [i.e. the words 'although in the case of a tenanted agricultural building, the value in planning terms of the existing use should be taken into consideration'], seems to suggest that tenanted agricultural buildings should possibly be assessed differently, but [it] is not clear as to how this should be done. How does one assess what is the value in planning terms of the existing use?
....
I would therefore be grateful if you could advise me generally whether or not the view I am taking in this matter is the correct one ...."
20. The advice relayed to the council by the Association, following discussion of the issue at the Development Control Topic Group meeting of the Planning Officers Society, was in these terms:
"The Society Members took the view that the planning officer's interpretation of the relevant Government policy context was correct, although they had some sympathy with the problems faced by the agricultural tenant. The Society felt that the matter would have to be addressed by a general review of PPG7."
21. There followed a fourth report to the sub-committee, dated 27 May 1999. The paragraph already quoted from the first report, concerning PGWPP (1996), was repeated. There followed a paragraph on PGWPP (1999) and comments on the advice from the association and on Annex D of PPG 7:
"In April, 1999, the 1996 'Planning Guidance Wales: Planning Policy' was revised. Paragraph 10.5 of that document therefore provides the most recent advice on the re-use and adaptation of rural buildings. For ease of reference for Members, this section of the Guidance is set out in full as Appendix E to this report. It is noted that the new guidance does not clarify the issue of the 'redundancy' of the building and the weight to be given to a tenant.
Consideration of the application was deferred originally to allow the Sub Committee to inspect the site. Following this the application was considered again at the Sub Committee meeting on the 18th November 1998, at which Members of the Sub Committee deferred the application again for the following reasons:
....
2. To write to the Local Government Association to seek its advice on the case, and in particular the impact on the tenants agricultural activities being a material planning consideration.
3. To examine Policy advice on the loss of working farm buildings not being replaced.
As a result of the above, the Sub Committee is advised as follows:
....
2. The following reply has recently been received from the Local Government Association in response to a letter sent on 11th December 1999: ...[reply already quoted]
The copy of my letter to the Local Government Association is attached as Appendix D.
3. With regard to Policy advice the most relevant Central Government advice (in addition to the revised Policy Guidance Wales referred to above) can be found in Annex D of PPG7 which states 'it should not normally be necessary to consider whether the building is no longer needed for its present agricultural or other purposes (although in the case of a tenanted agricultural building, the value in planning terms of the existing use should be taken into consideration). Evidence that a building is not redundant for its present use is, not by itself sufficient grounds for refusing permission for a proposed new use.' Although this advice is not clear, it is considered that it is weighted in favour of the conversion of the building for alternative uses, even if it is presently used.
It is considered that none of the above requests for additional comments or information have resulted in any material reasons to change the original recommendation. Accordingly, the application is recommended for approval, subject to the conditions which are set out below."
22. The chief planning officer explains in his affidavit that he attended at the meeting of the sub-committee. He describes events at the meeting as follows:
"I explained to members that there was no planning reason to refuse the application and that the position of the tenant, though a material consideration, was not, in the absence of any other objection, sufficient ground to sustain a refusal of the application. The Chair advised the Committee that he was reluctant to concede the point but that it appeared that the Committee had reached the end of the road. A local member agreed and stated that the matter had to be addressed as one of planning simpl[icit]er, and that personal sympathy for the tenant should not cloud the judgement of members. It was therefore moved and seconded that the officers recommendation to approve the application be accepted, and this was carried without objection."
Submissions
23. The main case advanced by Mr Elvin for the applicant can be put very shortly. He submitted that the officers failed to advise the members of the sub-committee that personal circumstances of an occupier were capable of being material considerations and failed to advise them properly about the relevant policies. The result was that the members were misdirected and did not properly understand the policy framework when reaching their decision. They felt boxed in by officers' advice and were left with the erroneous impression that the matters advanced by the applicant could not, as a matter of law, amount to a sufficient reason for the refusal of planning permission.
24. Mr Elvin sought to underline those submissions by reliance on Article 8 of the European Convention on Human Rights. He contended that the grant of planning permission constituted an interference with the right to respect for the applicant's "home", a broad concept which can extend to a professional office (Niemietz v. Gerrmany (1992) 16 EHHR 97) and is apt to include the applicant's farm - even though he does not himself live in the house at the farm. Mr Elvin accepted that the interference here was "in accordance with the law" and that there was a legitimate aim, but said that there was a failure to give proper consideration to all the relevant planning circumstances for the purpose of determining whether the interference was justified. Prior to the coming into force of the Human Rights Act 1998 the decision cannot be challenged directly on grounds of proportionality (i.e. on the basis that the gain of one new dwelling was not proportionate to the harm to the home and livelihood of others). But a decision interfering with a fundamental right should be scrutinised closely by the court, in accordance with the approach laid down in R v. Lord Saville, ex parte A [1999] 4 All ER 860.
25. Mr Jones, for the respondent, placed understandable stress on the detailed history of the case, showing the thought given to it by the council's officers and by the members of the sub-committee - even down to the exceptional measure of seeking advice from the Local Government Association. He submitted that the circumstances of the claimant and the effect of granting planning permission were plainly taken into consideration. The weight to be given to them was a matter for the sub-committee, subject to their acting within the bounds of Wednesbury reasonableness. The decision reached in this case was within those bounds. Nor was there any misdirection. The advice tendered to the sub-committee (and supported by the Association) was in accordance with policy and the law.
26. Mr Jones further submitted that, if Article 8 ECHR had any bearing at all, it did not advance the applicant's case. He accepted that the decision resulted in an interference with the applicant's "home" within the meaning of the article, but contended that the interference was in accordance with the law, pursued a legitimate aim and complied with the principle of proportionality. He relied on the decision of the European Court of Human Rights in Buckley v. United Kingdom [1996] JPL 1018, where it was held that the planning authorities had not employed disproportionate means to achieve their legitimate aim; though he accepted that the decision depended on the particular facts and did not provide a complete answer. In the present case, he submitted, weight must also be given to the rights of the Trustees who own the freehold.
Conclusions
27. I am persuaded by Mr Elvin's submissions that members were misdirected and felt unduly boxed in by officers' advice. A number of strands combine in support of that conclusion.
28. First, members were not informed that "the personal circumstances of an occupier, personal hardship and the difficulties of businesses which are of value to the character of a community" are capable of being material considerations even if to give effect to them will involve an exception from general policy (see Westminster City Council v. Great Portland Estates Plc, above). It would have been for the members to decide whether the circumstances were sufficiently exceptional or special to justify taking them into account in that way. On the material before the court, and having regard to the general approach of the members of the sub-committee, I do not think that one can exclude the possibility that they would have so regarded them or that they would have been able to advance proper reasons for so regarding them.
29. Secondly, in this case the circumstances of the applicant and the objections that he advanced could be taken into account in any event as part of the policy framework. Annex D to PPG 7 provided in terms that in the case of a tenanted agricultural building the value in planning terms of the existing use should be taken into consideration. It seems to me that judgments could sensibly be made about the value "in planning terms" of the existing use, by reference on the one hand to the harm to the existing agricultural use and local employment and, on the other hand, to the need for and advantages of a single new residential dwelling. The advice to members (reflecting in this respect the letter to the Association) did less than justice to the relevant passage when referring to it as "not clear", and misrepresented the effect in this context of paragraph D2 as a whole in expressing the view that "it is weighted in favour of the conversion of the building for alternative uses, even if it is presently used".
30. Thirdly, national and local policy had more to say in favour of retention for agricultural use and against conversion for residential use than was allowed for in the advice given to members. Paragraph 10.5 of PGWPP (1999), although not dealing in terms with the situation that existed in this case, does indicate a policy preference in favour of business rather than residential re-use of buildings which have ceased to be used for agricultural purposes; which should apply a fortiori, as Mr Elvin submitted, to buildings which have not ceased to be used for agricultural purposes. As regards local policy, the passages I have quoted from the explanatory text to ENV 7 and the Policy and Design Guide indicate a clear preference for retention of agricultural buildings for agricultural use. The policy material also lays stress on the particular care with which applications for changes to residential use should be examined. That last point did feature in the advice given to members, but PGWPP (1999) was dealt with dismissively and the aspects of local policy to which I have referred were not mentioned at all.
31. In the light of those various matters, the view expressed in the chief planning officer's letter to the Local Government Association that "the loss of the buildings to the holding is not a material planning consideration" was in my judgment a mistaken view. The Association was likewise mistaken in endorsing that view, as I consider it did by its reply - though it is fair to observe that the Association did not have the complete policy picture before it. Although it is said in the chief planning officer's affidavit that the members of the sub-committee were advised that the position of the tenant was a material consideration, I find that a little difficult to reconcile with what is said in the written material before the sub-committee. In any event I am satisfied that any such oral advice was insufficient to correct the mistaken view set out in the correspondence with the Association, copies of which were included in the sub-committee's papers.
32. The affidavit goes on to say that the members were advised that the position of the tenant, though a material consideration, was "not, in the absence of any other objection, sufficient ground to sustain a refusal of the application." The members were effectively being told that the tenant's position and the loss of the buildings to agricultural use could not amount to a free-standing planning consideration capable of justifying the refusal of permission; that there had to be some additional ground of objection such as the highways objection that had been the basis of the original recommendation of refusal. In my judgment that was an erroneous approach. It adopted too narrow a view of the relevant policy framework.
33. I recognise that some, but not all, of the relevant policy material was quoted in or appended to the reports to the sub-committee and that the members will have been able to read that material for themselves. In the light of the way in which the matter was presented to them, however, I am satisfied that they did not properly understand the policy framework within which their decision fell to be made or the true extent to which the matters of concern to them could be taken into account as material considerations. It is evident that they relied on the erroneous advice given to them. In consequence they did not give proper consideration to the circumstances of the applicant and his family and did not properly weigh the various planning considerations engaged by the application for permission, including the harm to the existing agricultural use and the need for a new residential dwelling. There is a real possibility that they would have arrived at a different decision had they done so.
34. I have considered the planning inspector's decision of 12 April 1996, to which reference was made in the reports to the sub-committee, and the decision of the court in Fowler v. Secretary of State for the Environment and North Wiltshire DC, to which the affidavit refers. Each seems to me to turn on its own facts, rather than laying down any general principle that could assist the council in this case.
35. I should stress that, although I have found that the advice given to the sub-committee was erroneous, it is plain that the matter was considered throughout in good faith and with considerable care. The council's officers did not have the benefit of legal submissions of the quality of those made to the court. Had they done so, their advice would no doubt have been different and the problem would have been avoided.
36. In view of the conclusion I have reached on the main issue, I can deal very briefly with the European Convention on Human Rights. Had I otherwise been against Mr Elvin, I would not have been persuaded to reach a different conclusion by reference to his submissions on Article 8. In my view the points he made apply more appropriately to a challenge based on Wednesbury irrationality than to a challenge based on misdirection. The primary issue in the present case is one of misdirection. Although Mr Elvin signified a fall-back Wednesbury challenge, it was not advanced in any detail or with any cogency. I certainly do not consider the points on Article 8 to be sufficiently weighty to convert the fall-back Wednesbury challenge into one of substance on the present facts. I express no view on how Article 8 would bite on the case if the Human Rights Act 1998 were in force, but I would observe that the decision in Buckley is heavily dependent on the particular facts of that case and would not offer any great assistance to the council in terms of principle.
37. In the result, for the reasons I have given, the planning permission will be quashed. The application for planning permission will fall to be redetermined by the council in accordance with this judgment.

Ruling on consequential orders (this does not form part of the judgment)
A draft of this judgment was made available to the parties' legal representatives, who have helpfully dealt with consequential matters by way of written submissions and have agreed the position with regard to costs. I therefore rule as follows:
1. There will be an order of certiorari to quash the grant of planning permission.
2. The council is to pay the applicant's costs, summarily assessed in the sum of £16,856.55.